This post is about un-preempted fraud on the FDA claims and how to approach them….
“Heresy!” We hear you shout. “There’s no such thing as an unpreempted fraud on the FDA claim – at least one not brought by DoJ on behalf of the FDA itself. You guys have said so yourselves, in your discussion of preemption and “embedded” fraud on the FDA allegations.”
Yes we did.
We continue to believe (more…)
Two of the cases on our medical device preemption scorecard have been:
Johnson v. Endovascular Technologies, Inc., 2008 WL 3139424 (Cal. Super. May 19, 2008). Express warranty and failure to test claims are preempted under Riegel. Allegations amounting to fraud on the FDA are preempted by Buckman. Plaintiff has appealed this case.
McGuan v. Endovascular Technologies, Inc., 2008 WL 3139418 (more…)
As we said last week, because it’s a Dechert case, we can’t comment directly on Clark v. Pfizer, Inc., 2010 WL 163583, slip op.(Pa. Super. Jan. 19, 2010). However, we were sufficiently inspired by what’s in the opinion that we thought this would be a good time to put in our two cents worth about one of the theories that theClark plaintiffs pursued: “fraud on the market.”
As defense lawyers, we want to (more…)
As we said last week, because it’s a Dechert case, we can’t comment directly on Clark v. Pfizer, Inc., 2010 WL 163583, slip op.(Pa. Super. Jan. 19, 2010). However, we were sufficiently inspired by what’s in the opinion that we thought this would be a good time to put in our two cents worth about one of the theories that theClark plaintiffs pursued: “fraud on the market.”
As defense lawyers, we want to (more…)
Last week we put In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation (Doria), 2009 WL 2600517 (M.D. Ga. Aug. 24, 2009) (slip op. here), on the device preemption scorecard. Only a couple of pages long, Doria held that punitive damages were unavailable the New Jersey Product Liability Act (“PLA”) because the fraud on the FDA exception in the PLA was preempted by Buckman Co. v. Plaintiffs’ (more…)